Archive for May, 2016

A Call for Rethinking How We Sentence, from a Thoughtful Opinion

posted by Judge_Burke @ 15:01 PM
May 31, 2016

From The New York Times:

A federal judge in Brooklyn, in an extraordinary opinion that calls for courts to pay closer attention to the impact of felony convictions on people’s lives, sentenced a young woman in a drug case to probation rather than prison, saying on Wednesday that the collateral consequences she would face as a felon were punishment enough.

The judge, Frederic Block of Federal District Court, said that the broad range of such collateral consequences served no “useful function other than to further punish criminal defendants after they have completed their court-imposed sentences. ”The issue of collateral consequences and sentencing has been considered by other courts, but Judge Block’s 42-page opinion appears to be one of the most detailed examinations yet, combined with his call for reform.He noted that the inability to obtain housing and employment stemming from a conviction often results in “further disastrous consequences, such as losing child custody or going homeless,” and leads to many ex-convicts “becoming recidivists and restarting the criminal cycle.”


What Does Abuse of Discretion Really Mean?

posted by Judge_Burke @ 14:30 PM
May 27, 2016

The ABA Journal has an interesting piece on a recent concurring opinion by Judge Richard Posner. It begins:

What has discretion got to do with it?

That’s one of the questions Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals asked in a May 17 concurrence (PDF) that criticizes legal jargon such as “abuse of discretion.” The “verbal formulas” in the majority opinion, Posner says, “are common, orthodox, even canonical. But they are also inessential and in some respects erroneous, and on both grounds ripe for re-examination.”

The phrases, Posner says, load the dice against defendants. One example, he said, is “abuse of discretion,” the standard the majority used to review claims of error in jury instructions.

“Common as the term ‘abuse of discretion’ is in opinions dealing with appeals from district court decisions, I find it opaque,” he writes. “If the appellate court is persuaded that the trial court erred in a way that makes the trial court’s decision unacceptable, it reverses. What has discretion to do with it? And ‘abuse’ seems altogether too strong a term to describe what may be no more than a disagreement between equally competent judges—the trial judge and the appellate judges—that the appellate judges happen to be empowered to resolve as they see fit.”

The National Law Journal notes the concurrence in this story (sub. req.) and interviews Posner about his views here (subscription required).




A federal judge has ruled that a provision of the District’s new gun law is likely unconstitutional and ordered the Washington  D.C. police to stop requiring individuals to show “good reason” to obtain a permit to carry a firearm on the streets of the nation’s capital.

In imposing a preliminary injunction pending further litigation, U.S. District Judge Richard J. Leon reignited a running battle over the Second Amendment in the District and its courts where three different judges have now weighed in with varying conclusions.

“The enshrinement of constitutional rights necessarily takes certain policy choices off the table,” Leon wrote in a 46-page opinion, quoting a 5-4 U.S. Supreme Court decision in 2008 in another District case that established a constitutional right to keep firearms in one’s home.

You can access the  ruling of the U.S. District Court for the District of Columbia at this link.


The Right to Sell Arms

posted by Judge_Burke @ 14:30 PM
May 26, 2016

The 9th U.S. Circuit Court of Appeals has ruled that  the Second Amendment right to keep firearms has been expanded to protect the right to commercial weapons sales over the attempts by local municipalities to limit gun sales on their municipality.

“The Second Amendment right must also include the right to acquire a firearm,” the appeals court reasoned, in a 2-1 decision. — F.3d —-, 9th Cir.(Cal.), May 16, 2016.

The court reinstated the constitutional claim by three men, including John Teixeira, who sought to open a gun store in Alameda County, but were blocked by a zoning rule requiring gun stores be 500 feet from private homes.

Early American judges simply assumed the right to keep arms necessarily included the right to purchase them, said Judge Diarmuid O’Scannlain.

“If the ‘right of the people to keep and bear arms’ is to have any force, the people must have a right to acquire the very firearms they are entitled to keep and to bear,” he wrote.

“One cannot truly enjoy a constitutionally protected right when the state is permitted to snuff out the means by which he exercises it; one cannot keep arms when the state prevents him from purchasing them,” he said.

For a Harvard Law Review article on the subject, go here


Gag Orders can Conflict with the First Amendment

posted by Judge_Burke @ 14:30 PM
May 25, 2016

Professor Ruthann Robson, who teaches at City University of New York School of Law, has a short but interesting piece on gag orders:

In its relatively brief but important opinion in In re William Goode, the Fifth Circuit found that Western District of Louisiana Local Criminal Rule 53.5 (“L. Crim. R. 53.5”), violated the First Amendment as applied to Goode.

The rule provides:

During the trial of any criminal matter, including the period of selection of the jury, no lawyer associated with the prosecution or defense shall give or authorize any extrajudicial statement or interview, relating to the trial or the parties or issues in the trial, for dissemination by any means of public communication, except that the lawyer may quote from or refer without comment to public records of the court in the case.

In Goode’s situation, he was an attorney “associated” with the defense although not defense counsel in the criminal case. Instead, he was assisting the two defendants, both of whom were also attorneys. 

During the trial, one of the defendant attorneys “suffered from a self-inflicted gunshot wound.”  The prosecution stated it would not oppose a mistrial, but before the judge ordered a mistrial, Goode “gave interviews to two media outlets.”  Goode contended he was under the belief that a mistrial would be granted and that a reporter had promised to hold the story until the mistrial was granted, although the story ran online before the mistrial was granted. The Chief Judge of the district later suspended Goode from practice in the district court for six months.

The Fifth Circuit discussed Gentile v. State Bar of Nevada (1991) as well as Fifth Circuit precedent that held that “prior restraints on trial participants must be narrowly tailored to only prohibit speech that has a “meaningful likelihood of materially impairing the court’s ability to conduct a fair trial.” and that the “prior restraint must also be the least restrictive means available.”  The unanimous Fifth Circuit panel found that the application of the “expansive” Rule 53.5 that was applied to Goode was a prior restraint and was neither narrowly tailored nor the least restrictive means possible.

While the Fifth Circuit did not address the facial challenge and while Goode’s situation has unique features, the Fifth Circuit’s opinion casts the shadow of unconstitutionality on the local Rule 53.5.


Sex Offenders, Treatment & The Fifth Amendment

posted by Judge_Burke @ 14:30 PM
May 24, 2016

If you don’t regularly read the Sentencing Law & Policy blog, you should.  As an example:

A helpful reader alerted me to two new ruling from the Colorado Supreme Court concerning sex offender supervision and the Fifth Amendment.  Here are links to the opinions and the summary that appears at the start:

People v. Ruch, No. 13SC587, 2016 CO 35 (May 16, 2016) (available here):

This case requires the supreme court to determine whether the trial court properly revoked the defendant’s probation for, among other things, refusing to enroll or participate in sex offender treatment based on his concern that in the course of such treatment, he would have been compelled to incriminate himself in violation of the Fifth Amendment.

The supreme court perceives no Fifth Amendment violation here, where the trial court revoked the defendant’s probation based on his total refusal to attend treatment.  In these circumstances, the defendant’s purported invocation of his Fifth Amendment rights was premature and amounted to a prohibited blanket assertion of the privilege. Accordingly, the court holds that the trial court properly revoked Ruch’s probation based on his refusal to attend treatment.

People v. Roberson, No. 13SA268, 2016 CO 36 (May 16, 2016) (available here):

The supreme court concludes that on the facts presented here, the defendant’s Fifth Amendment privilege against self-incrimination precluded the district court from revoking the defendant’s sex offender intensive supervision probation based on his refusal to answer a polygraph examiner’s question regarding his use or viewing of child pornography while he was on probation.  On the record before the court, however, the court is unable to determine whether the defendant’s privilege against self-incrimination precluded the district court from revoking the defendant’s probation based on his refusal to answer questions concerning any post-trial sexual fantasies involving minors that he might have had within the six months immediately preceding the polygraph examination.  Accordingly, the supreme court makes its rule to show cause absolute and remands this case to the district court with directions that the court conduct further proceedings as more fully set forth in this opinion.


You can find the Sentencing Law & Policy blog here.




Plea Bargaining from the Ground Up

posted by Judge_Burke @ 14:30 PM
May 23, 2016

Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops


Stephanos Bibas 

University of Pennsylvania Law School


William & Mary Law Review, Vol. 57, P. 1055, 2016

U of Penn Law School, Public Law Research Paper No. 16-6


American criminal procedure developed on the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes. But now that plea bargaining has all but supplanted juries, we need to think through what safeguards our plea-bargaining system should be built around. This Symposium Article sketches out principles for redesigning our plea-bargaining system from the ground up around safeguards. Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas. To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation of charges, pleas, and sentences. Part II then diagnoses unfair repercussions caused by defendants’ lack of information and understanding, laymen’s lack of voice, and the public’s lack of information and participation. To prevent and fix these sources of unfairness, it proposes ways to better inform pleas and to make plea procedures more procedurally just.




The below recent decision by the British Columbia Court of Appeal will no doubt be read with interest by Canadian judges, but judges in the United States should also read this decision and reflect as to why similar approaches to the law do not occur in the United States.

The U.S. has a problem with mass incarceration — and like it or not, judges are a big reason as to why the U.S. has such a high incarceration rate. True, there are legislative mandatory minimums, so the blame can be shared, but being a “co-defendant” in a mass incarceration epidemic is hardly a courageous position to be in. 

In R. v. Dickey, 2016 BCCA 177, April 25, 2016, the accused were charged with the offences of trafficking and possession for the purpose of trafficking, contrary to section 5(3) of the Controlled Drugs and Substances Act. The offences were committed in a public place usually frequented by persons under the age of 18 years or by using the services of a person under the age of 18 years or with the involvement of such a person. 

Sections 5(3)(a)(ii)(A) and (C) of Controlled Drugs and Substances Act provide for a minimum two-year prison sentence when an offence is committed in or near a school, on or near school grounds, or in or near any other public place usually frequented by persons under the age of 18 years; or using the services of, or involving, such a person.

At their sentence hearings, the accused argued that this minimum sentence contravened section 12 of the Charter and constituted cruel and unusual treatment. In each case, the sentencing judge agreed and held that the provision of the Controlled Drugs and Substances Act which require the imposition of a minimum prison sentence infringed section 12 of the Charter, by virtue of section 52 of the Constitution Act, 1982, were of no force or effect, and were not saved by s. 1.

The Crown appealed.  The appeals were dismissed.  The British Columbia Court of Appeal concluded that “in some circumstances, s. 5(3)(a)(ii)(A) and (C) would constitute cruel and unusual punishment and accordingly infringe s. 12 of the Charter because a minimum two-year prison sentence would be grossly disproportionate to an appropriate sentencing disposition.  They would do so in a way that cannot be demonstrably justified in a free and democratic society such that they are of no force or effect” (at paragraph 11).


The British Columbia Court of Appeal noted that the Supreme Court of Canada held in R. v. Nur that “a sentence which constitutes cruel and unusual punishment is one that is grossly disproportionate to the punishment that is appropriate having regard for the nature of the offence and the circumstances of the offender.”  The Court of Appeal described the test to be applied in considering the constitutionality of the provisions in issue being the following (at paragraph 27):

It follows that, in considering whether the minimum two-year prison sentence for which s. 5(3)(a)(ii)(A) and (C) of the Act provide infringes s. 12 as being cruel and unusual punishment, it is necessary to determine whether in each instance the sentence is a punishment that is grossly disproportionate to the proportional sentence that is appropriate for the offender, or a reasonably foreseeable hypothetical offender. This entails a two-step process: first, an appropriate sentence must be determined having regard for the objectives and principles of sentencing provided in the Criminal Code; and then, it must be determined whether the minimum prison sentence requires the imposition of a sentence that is not merely excessive, but grossly disproportionate to the appropriate sentence. If it does, the punishment infringes s. 12 and the sentence cannot be imposed unless demonstrably justified under s. 1.

R. v. Dickey-Section 5(3)(a)(ii)(A) (committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years):

The Court of Appeal concluded that in Dickey a sentence of six months imprisonment was appropriate. They concluded that the imposition of the minimum two year sentence would infringe section 12 of the Charter (at paragraph 68):

The imposition of a two-year prison sentence in a federal penitentiary would not only be a disproportionate punishment, but one that would be grossly so if imposed on Dickey (and more so on a younger hypothetical offender) when compared to an appropriate sentence.  In determining whether a minimum sentence is grossly disproportionate, the comparison of the appropriate sentence and the statutory minimum sentence to be imposed would seem to always be the first consideration, as it was in Nur.  There are contextual factors to consider that may have a bearing on the determination in any given instance, but there would appear to be none that would render a minimum two-year prison sentence for Dickey other than grossly disproportionate.  As the judge concluded, it does infringe s. 12 of the Charter.

The Court of Appeal concluded that “while the section has a pressing and substantial objective, being the protection of young people from the drug trade, it cannot be said that it is proportional to that objective because, while there may be a rational connection to what are the penological objectives of denunciation and deterrence, the section does not constitute a minimal impairment of the right infringed and the deleterious and salutary effects of it are not proportional” (at paragraph 73). 

R. v. Bradley-Luscombe-Section 5(3)(a)(ii)(C) (used the services of a person under the age of 18 years, or involved such a person, in committing the offence):

The Court of Appeal concluded that in Bradley-Luscombe a sentence of eight months imprisonment was appropriate. They concluded that the imposition of the minimum two year sentence would infringe section 12 of the Charter (at paragraphs 114 to 116):

The circumstances would not have been rendered less exceptional if one of the offender’s children had been 17 years of age and the offender had in some minimal way involved him or her in the possession of the small amount of the drug that was the subject of the guilty plea.  It would indeed be difficult to say that, having regard for the offender’s medical condition in particular, sentencing him to two years to be served in a federal penitentiary would not, in the circumstances, have been a grossly disproportionate punishment.

Clearly, in the same way s. 5(3)(a)(ii)(A) infringes s. 12 of the Charter, so too does s. 5(3)(a)(ii)(C).

The second question arising is then whether s. 5(3)(a)(ii)(C) can be said to be demonstrably justifiable under s. 1.  It cannot for the same reason s. 5(3)(a)(ii)(A) cannot: the section is not proportional to its penological objectives because, while there may be a rational connection to them, the section does not constitute a minimal impairment of the right infringed – there is no exception for exceptional circumstances – and the deleterious and salutary effects are not proportionate.


Fair Punishment Project

posted by Judge_Burke @ 14:30 PM
May 19, 2016

Harvard Law School’s Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute announced  the Fair Punishment Project (FPP).

The Fair Punishment Project will use legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable.  The Project will work to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyers, and racial bias and exclusion. The announcement said:  

We’ll be releasing our first report in the next day or two, so keep an eye out — you don’t want to miss it.  Future reports will highlight the troubling attributes that outlier death penalty counties have in common, examine America’s top 10 deadliest prosecutors, and look deeply into counties that are plagued by prosecutorial misconduct. 

The Charles Hamilton Houston Institute was launched in 2005 by Harvard Law School professor Charles J. Ogletree Jr. The Institute serves as a critical bridge between scholarship, law, policy, and practice to solve the challenges of a multi-racial society.  The Criminal Justice Institute trains Harvard Law School students who will be the next generation of ethical, effective, and passionate defense lawyers.  Led by Ronald S. Sullivan Jr., the Institute leads research of the criminal and juvenile justice systems in order to affect local and national reform.

The Fair Punishment Project will strive to be a valuable resource for anyone and everyone who is interested in bringing about a fair and equitable justice system.  We hope you will visit our website at to learn more about our work, and that you will join us as we address one of the most critical issues of our time. Here are titles and links to some of the notable sentencing-related content already up at the FPP website:


William H. Rehnquist Award

posted by Judge_Burke @ 14:30 PM
May 18, 2016

Two Past Presidents of the American Judges Association have received  the Rehnquist Award. AJA members should take this announcement seriously.

NCSC seeks nominations for
William H. Rehnquist Award

An invitation from Mary McQueen, president of the National Center for State Courts (NCSC)

It is my pleasure to invite nominations for one of the nation’s highest judicial honors, the National Center for State Courts’ William H. Rehnquist Award for Judicial Excellence. This prestigious award recognizes a state court judge who demonstrates the outstanding qualities of judicial excellence exemplified by the late Chief Justice Rehnquist. Chief Justice John G. Roberts, Jr., will present the award at a dinner to be held at the United States Supreme Court on November 17, 2016. 

Nominating a candidate for the award is an excellent means of expressing appreciation to those who have served and have set an example worthy of recognition and emulation. You will find more information about the nominating process on our website at

Please submit your nominations by Friday, June 17, 2016.